Trespass to the Person, Land, and Nuisance Flashcards
What constitutes the tort of battery?
The direct intentional imposition of any unwanted physical contact on another person.
There is no requirement to prove that the contact caused or threatened any physical harm: Battiato v Lagana.
What are the elements of battery?
- Direct
- Positive
- Intentional
- Touching / application of force
References include Reynolds v Clarke, Innes and Wylie, Battiato v Lagana, and In re F (Mental Patient: Sterilisation).
What does intent mean in the context of battery?
D need only ‘intend’ the act that brings about physical contact with the plaintiff.
It is not necessary for D to intend to harm P or act with ‘hostility toward P’ (Battiato v Lagana).
What must be proven regarding touching in battery?
It must be proven that the contact went beyond generally acceptable contact from everyday life.
Reference: In re F.
What constitutes the tort of assault?
A direct, intentional threat that places the plaintiff in reasonable apprehension of imminent physical contact by the defendant.
Assault does not require actual physical contact.
What are the elements of assault?
- Direct
- Positive
- Intentional
- Threat
- Causing the plaintiff to reasonably apprehend
- The imminent application of force
References include Reynolds v Clarke, Innes v Wylie, Battiano v Lagana, Tuberville v Savage, and Zanker v Vartzokas.
What is the legal definition of False Imprisonment?
False imprisonment requires a total restraint on the plaintiff’s liberty
Relevant case: Bird v Jones
What are the three elements of false imprisonment?
- Direct
- Total restraint
- Intentional
Relevant cases: Coles Myer Ltd v Webster, Bird v Jones, Ruddock v Taylor
What constitutes total restraint in false imprisonment?
- Verbal coercion or Psychological restraint (Myer v Soo)
- No reasonable means of escape (Zanker v Vartzokas)
- Children in compulsory care (SA v Lampard-Trevorow)
Relevant cases: Myer v Soo, Zanker v Vartzokas
What is the significance of the case SA v Lampard-Trevorrow?
It addresses the issue of children in compulsory care
This case highlights special considerations in false imprisonment involving minors
What is the ‘reasonable means of egress’ test?
An objective test to determine escape options
Relevant case: McFazdean V CFMEU
List the factors considered in the ‘reasonable means of egress’ test.
- Threat or danger to the self
- Threat or danger to the property
- Distance and time
- Legality
These factors help assess the feasibility of escape in false imprisonment cases
What is the legal definition of Trespass to Land?
The tort of trespass to land protects the interest a person has in the exclusive possession of land
This definition emphasizes the right to exclusive possession
What are the four elements of trespass to land?
- A direct and positive interference
- The interference must be with ‘land’
- The land must be in the exclusive possession of the plaintiff
- The defendant must have acted intentionally
Relevant cases: Esso Petroleum Co Ltd v Southport Corporation, Kelsen v Imperial Tobacco Co Ltd, Delaney v TP Smith Ltd, Public Transport Commission of New South Wales v Perry
What is the definition of private nuisance?
Private nuisance is indirect interference with the possessor of land use and enjoyment of that land.
What are the elements for establishing private nuisance?
The elements for Private nuisance include:
* Plaintiff has an interest in land (Hunter v Canary Wharf)
* Defendant is the creator, adopter or authorizer of the nuisance (Peden v Bortolazzo)
* Interference with the use or enjoyment of the land (Hunter v Canary Wharf)
* Which is substantial and unreasonable (Clary v Women’s College)
What case establishes that the plaintiff must have an interest in land for a private nuisance claim?
Hunter v Canary Wharf
In a private nuisance claim, who must be the creator of the nuisance?
The defendant must be the creator, adopter or authorizer of the nuisance.
What must be proven regarding the interference in a private nuisance claim?
Interference with the use or enjoyment of the land must be substantial and unreasonable.
What is required to prove damage in the context of nuisance?
You need to prove some kind of damage as it is not actionable per se.
What types of damage can be considered in a nuisance claim?
Damage in the context of nuisance can be:
* Physical (‘material’) damage to property
* Interference with comfort, enjoyment or amenities through noise, smoke, smells, etc.
What is the legal significance of material damage in nuisance claims?
With Material damage, courts fall over themselves and that is sufficient.
What factors are assessed for interference with amenity in nuisance claims?
The assessment of interference with amenity requires consideration of:
* Lack of triviality (
* Give and Take (Clary v Womens)
* Locality (Robinson)
* Duration, time, frequency, and extent
* Hypersensitivity (Hollywood Silver Fox Farm)
True or False: Damage in a nuisance claim can only be physical damage to property.
False
